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Shayan v. Shayan

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT
Jan 6, 2012
B229106 (Cal. Ct. App. Jan. 6, 2012)

Opinion

         NOT TO BE PUBLISHED

         APPEAL from an order of the Superior Court of Los Angeles County. David J. Cowan, Commissioner. Affirmed.

          Shahriyar Shawn Shayan, in pro. per., for Respondent and Appellant.

          No appearance for Petitioner and Respondent.


          BIGELOW, P. J.

         Shahriyar Shayan (husband) contends the trial court improperly required him to pay his wife’s attorney’s fees in a marital dissolution action. We disagree and affirm.

         PROCEDURAL AND FACTUAL BACKGROUND

         Husband is the respondent in a marital dissolution action. The action began in 2007. The trial court considered a request for attorney’s fees from Zohreh Shayan (wife), in a bifurcated proceeding. In May 2010, the trial court issued a 12-page written ruling in which it awarded attorney’s fees to wife, pursuant to Family Code sections 271, 2030, and 6344, subdivision (b), as well as Code of Civil Procedure section 1218. The court ordered that the fees were to be paid in part by husband’s parents. The court ruled based on evidence “both from documents and testimony received at trial, as well as from numerous related hearings over the last several years [.]” In August 2010, the trial court entered a judgment based on the attorney’s fee award. Husband and his parents separately filed motions for a new trial. Husband also filed a motion to vacate the judgment. The trial court granted husband’s parents’ motion for a new trial, but denied husband’s motions for new trial and to vacate the judgment. Husband appeals the order awarding attorney’s fees.

Under Family Code section 271, the court may award attorney’s fees as a form of sanction. The court “may base an award of attorney’s fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys.” (Fam. Code, § 271, subd. (a).) The trial court is not to award a sanction that would impose an unreasonable financial burden on the sanctioned party. However, the party requesting fees under the provision need not demonstrate a financial need for the award. (Ibid.)

Husband’s parents are not parties to this appeal.

         DISCUSSION

         Husband faults the trial court’s order requiring him to pay his former wife’s attorney’s fees. We find his woefully inadequate brief fails to properly present these issues on appeal. Further, that the trial court’s order was appropriate.

         Husband’s brief on appeal partially describes the proceedings relating to the attorney’s fee award, with only intermittent citations to the record. The brief then states three “Issues for Decision”: “1. Whether the Judgement [sic] and Order appealed are vague and unintelligible when read together so that they cannot be enforced and the Judgement [sic] is void. 2. Whether the Judgement [sic] and Order appealed were entered without any or sufficient Evidence of need and ability to pay. 3. Whether findings and evidence were ever made regarding the award of $137, 000.00 attorneys fee per judgement [sic].” No discussion or argument accompanies these issues. The record does not include a reporter’s transcript or other summary of any of the relevant hearings in the trial court.

         Several principles of appellate review require us to deem husband’s arguments forfeited. To present issues on appeal for this court’s review, an appellant must support his or her claims with argument and discussion. (EnPalm, LCC v. Teitler (2008) 162 Cal.App.4th 770, 775 (EnPalm).) When asserting that a trial court’s order was unsupported by the evidence, the appellant must provide a fair statement of the evidence that was before the trial court. “[A]n attack on the evidence without a fair statement of the evidence is entitled to no consideration when it is apparent that a substantial amount of evidence was received on behalf of the respondent. [Citation.]” (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246 (Nwosu).) Appellate briefs must provide a summary of the significant facts relevant to the appeal and citations to the record. (Ibid; Cal. Rules of Court, rule 8.204(a) .) When asserting a trial court’s ruling was an abuse of discretion, the appellant must provide a record to establish what actually occurred at the proceeding in which the ruling was made. (Wagner v. Wagner (2008) 162 Cal.App.4th 249, 259.)

         Husband’s appellate briefing fails to meet any of the above requirements. Beyond brief, conclusory assertions in his “statement of the case, ” husband provides no discussion or argument regarding any of the three asserted issues on appeal. Husband claims the trial court’s award of attorney’s fees was not supported by sufficient evidence. But he offers only a minimal and woefully incomplete summary of the evidence, despite providing us with an eight volume clerk’s transcript. To the extent husband provides citations to the record, they are clearly incomplete. For example, he states: “An income and expense was submitted to the trial court showing husband earned $1, 169.00 a month for 2010 and wife earned $1307 a month for 2009. (CT vol 7 of 8 pages 1723 to 1727 for Husband)[.]” Husband provides no citation to the record regarding wife’s purported 2009 income. He makes no mention of other evidence in the record regarding wife’s income and expenses. He ignores the trial court’s express reliance on evidence other than husband’s income and expense statement in determining the reasonableness of the fee award. Although the trial court’s written order indicates there was a “trial” on the issue of, or related to, attorney’s fees, husband included no reporter’s transcript or other summary of the proceedings in the record on appeal. Husband further asserts the “judgment and order” are “vague and unintelligible, ” and the judgment is “void, ” but he does not support the assertion with any argument.

Even this record appears to be abbreviated. The earliest document husband designated for the clerk’s transcript was an income and expense declaration he filed in December 2009. The dissolution petition was filed in June 2007. It appears from the record that the attorney’s fee issue arose before 2009, although we cannot discern when or in what context the request was first made, or when the trial court bifurcated the issue. The court’s May 2010 written ruling indicates the attorney’s fee award related at least in part to a domestic violence restraining order, contempt proceedings, “hearings related to travel and holidays, ” and discovery relating to husband’s business and property interests. No pleadings or record of hearings associated with those proceedings are included in the record on appeal.

         As noted above, we will not consider a sufficiency of the evidence argument when it is clear the appellant has not provided a fair statement of the evidence. Further, “ ‘[t]he appellate court is not required to search the record on its own seeking error.’ [Citation.] Thus, ‘[i]f a party fails to support an argument with the necessary citations to the record, ... the argument [will be] deemed to have been waived. [Citation.]’ [Citations.]” (Nwosu, supra, 122 Cal.App.4th at p. 1246.) Moreover, failure to support appellate claims “by way of argument, discussion, analysis, or citation to the record, ” will lead the appellate court to deem the claims waived. (EnPalm, supra, 162 Cal.App.4th at p. 775.) Although husband is representing himself in propria persona, he must still comply with appellate rules of procedure and adequately present the issues he seeks to raise on appeal. (Nwosu, supra, 122 Cal.App.4th at p. 1246.) He has not done so. Husband has therefore forfeited his contentions on appeal.

         Even were we to consider husband’s arguments, we would find them meritless. We presume a trial court’s judgment and orders are correct unless the appellant affirmatively shows error. (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 822.) Here, the judgment and order husband references are clearly written and understandable. The August 2010 judgment is consistent with the court’s May 2010 written ruling. To the extent the trial court was required to make findings as to need and financial ability to pay before awarding wife attorney’s fees, the court’s findings appear to be supported by substantial evidence. The limited record on appeal includes evidence that wife was receiving government assistance, and had only limited income from employment. There was further evidence that despite husband’s representations in his income and expense statements, he in fact had additional financial means not identified in those statements. The trial court also considered evidence that appellant did not include in the record on appeal; we assume that such evidence further supported the trial court’s findings. (In re Angel L. (2008) 159 Cal.App.4th 1127, 1137; Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 448-449.) Finally, the May 2010 order indicates the trial court indeed made evidentiary findings to support the attorney’s fee award. Thus, we find no error.

         DISPOSITION

         The trial court’s order is affirmed. As there has been no appearance for respondent, no costs will be awarded on appeal.

          We concur: RUBIN, J., GRIMES, J.

Under Family Code section 2030, the court may award attorney’s fees to ensure that each party has access to legal representation, if the court’s findings demonstrate a disparity in access and ability to pay. Under Family Code section 6344, subdivision (b), the court may award attorney’s fees to the prevailing party in connection with a petition for a domestic violence restraining order. Under Code of Civil Procedure section 1218, the court may order that one adjudged guilty of contempt pay the reasonable attorney’s fees incurred by the party initiating the contempt proceeding.


Summaries of

Shayan v. Shayan

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT
Jan 6, 2012
B229106 (Cal. Ct. App. Jan. 6, 2012)
Case details for

Shayan v. Shayan

Case Details

Full title:ZOHREH MCINTYRE SHAYAN, Respondent, v. SHAHRIYAR SHAWN SHAYAN, Appellant…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT

Date published: Jan 6, 2012

Citations

B229106 (Cal. Ct. App. Jan. 6, 2012)